Two Recent Supreme Court Decisions Highlight the Narrow Pathway of Fair Use

Creatives have long relied on the Fair Use defense when using the work of others as direct inspiration for their own work. The Fair Use Doctrine can successfully be used as a defense to copyright infringement if you meet certain requirements.

The Supreme Court recently analyzed the Fair Use defense in ruling in favor of two copyright holders after others infringed upon their work. In the case of the Andy Warhol Foundation v. Goldsmith, Et Al., the court determined that artist Andy Warhol’s work failed to transform the original work in a unique way and had the same commercial purpose as the original. In Jack Daniel’s Properties, Inc. v. VIP Products LLC, the court’s decision stated dog toys imitating the famous Jack Daniels bottle and label design produced potential confusion as to the source of the design.

We will explore each of these cases further to understand just how narrow the Fair Use defense is for creators who may be inspired to create something based on another party’s work.

Andy Warhol’s Art Fails to Differentiate in Design or Commercialization

The first factor the courts consider when deciding a Fair Use case is the purpose and character of the use. Is the infringing work used for the same purpose as the original work or is it serving a new or even educational purpose?

In this case, Warhol’s work used rock photographer Lynn Goldsmith’s black-and-white picture of legendary musician Prince and made minor changes to the background and color layout.

Because the work was commercialized in the same manner as the original, the court ruled the purpose of the use directly infringed upon the original. If Warhol’s art had been a “transformative” use of the original then the court likely would have ruled in the Warhol Foundation’s favor, but the work reflected a near exact copy of the original both visually and commercially.

Jack Daniels Case Sets Precedent for Source-Identifying Works

Jack Daniels’ pursuit of VIP Products and their use of JD trademarks for their “Bad Spaniels” dog toys resulted in a potential new precedent from the Supreme Court. The court reversed lower-court decisions centered around works of parody that those courts claimed could skirt certain infringement claims.

The “Bad Spaniels” dog toys feature almost the same exact logos, font, label design, and size as a regular Jack Daniels bottle. The famous JD bottles include a multitude of trademarks that the court ruled were being abused by VIP Products.

The court ruled that the use of other trademarks in the creation of source-identifying works is still an infringement even if the new works are for a noncommercial purpose. Supreme Court Justice Elena Kagan, who wrote the opinion, reversed the lower-court inclusion of the “Rogers test” as a first amendment defense because the trademarks being used designated the source of the dog toys.

While the court is not taking a position on the oft-used Rogers case, they are rejecting it as a defense in this case specifically. In the end, the significance of this decision lies in the way the court rejected the use of one company’s trademarks for another company’s own source-identifying trademarks. If the work has the potential to cause confusion as to its origin, then trademark infringement is present.

At CLARK.LAW, we support the right of Americans to create and innovate, but we also support the rights of individuals and companies to protect their work. These cases highlight how narrow the Fair Use defense often is. If you believe someone is infringing upon your company’s work or that your company is being inappropriately sued for infringement, contact our team and defend your work.

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